In a remarkable display of corporate power, and sticking to principles, Apple has defied the legal and moral power of the FBI and the American state.
The furore surrounding Apple and the FBI are well known. The FBI wants Apple to create a ‘back door’ into Apple software so investigators can unlock and examine an iPhone belonging to San Bernardino gunman Rizwan Farook. Apple CEO Tim Cook has been uncompromising in his response.
Even when threatened by the US Justice Department (DOJ) with litigation, and court orders, he has remained vocally and openly defiant. Even going as far as to circulate online an open letter to Apple customers setting out the company’s position, he had come out unequivocally in favour of personal privacy. So far, Mr Cook has refused to consider developing such a electronic back door, fearing the consequences if it was developed and used. Even though law enforcement might have legitimate cases to use such software – the scope for misuse is too great and dangerous. The greater risk, according to Mr Cook and Apple, is if that electronic master key would fall into the wrong hands. Mr Cook has won great support from privacy campaigners, Apple users, and fellow tech companies (such as Facebook). Undeterred on their part by such a strong response, the FBI launched a legal bid to force Apple to develop a way of unlocking their own devices.
In recent developments, the DOJ – on behalf of the FBI – asked for the court proceedings to be postponed. The reason behind that was that the FBI claims that they might have a way to unlock the iPhone without Apple’s cooperation or help. The Bureau has not revealed the nature (or indeed the source) of the potential solution – which itself could be another ethical issue.
In a slightly surreal twist, eccentric cyber security software creator John MacAfee has offered his services to the FBI for free. In a convoluted (but logical) line of argument, he considers it better for a team of cyber security experts like him and his team to break the encryption rather than other ‘rogue’ hackers – and remains convinced he can crack the iPhone code within three weeks. The Bureau has yet to respond to his offer.
The initial FBI legal request was filed under the All Writs Act (1789). The Act is both straightforward and broad. The relevant part of the Act allows for
(a) The Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.
(b) An alternative writ or rule nisi may be issued by a justice or judge of a court which has jurisdiction.
The Act has been interpreted since the invention of telecommunications as to allow US law enforcement to get telecommunications companies to provide all and every assistance to investigations. That includes handing over records, or monitoring customers or devices as required. A leading case when the Act was used was United States v New York Telephone Co 434 US 159 (1977).
The FBI was investigating suspected illegal gambling in Gramercy Park. A request was filed in court for the New York Telephone Company to install a pen register. More commonly called a dialled number recorder (DNR), pen registers record all numbers dialled from a particular telephone line. The District Court approved the order, and required the company give all and every assistance in installing a pen register. The telephone company appealed.
Eventually, before the federal Supreme Court, the Justices found in favour of the FBI. Under the All Writs Act (and other legislation), it was perfectly legitimate to get the telephone company to install the DNR. Subsequently, 1986 saw the Electronic Communications Privacy Act passed. Title III created the Pen Registers Act (1986), which included rules and restrictions on pen registers being used by private companies and law enforcement.
This case has been cited in pre court filings by the FBI. Although privacy is not mentioned in the Constitution, the Bill of Rights (the first ten Amendments to the Constitution) do reference privacy issues indirectly. Whilst not drafted with 21st century technology or communications in mind – probably Apple will be using the Bill of Rights in its response and defence. Of interest might be the Fourth Amendment, which protects citizens from “unreasonable searches and seizures” – however defined.
This is but the latest in the endless battles between online and cyber privacy – and national security. Following the attacks in Brussels and now Lahore – counter terrorism hascbevone ever more important. With terrorists and other criminals increasingly moving online, and acting online, it is ever more important to monitor online activities. However, privacy rights activists equally vocally advocate for individual privacy in the face of intrusive state surveillance.
Many on both sides agree that a compromise or balance needs to be found between the right to privacy and national security. Legislation is needed, and rules and procedures in this regard. Despite that consensus there are those on both sides who remain unmoved by any compromise.
Although this is an American matter, concerning American laws over the American investigations into a domestic terrorist incident – this is a global debate and concern.
In the UK, the Regulation of Investigatory Powers Act (2000) (RIPA) has proved highly unwelcome and controversial. Its planned successor, the Draft Investigatory Powers Bill (DRIP) has proved similarly divisive, and is still under debate.
Apple is pushing for greater personal privacy – with the British government seemingly wanting greater surveillance powers. The solution lies somewhere in between. However, as time and technology advances, the time and opportunity for debate is slowly ending. Tough decisions need to be made, and soon, by governments, major technology and communications corporations, and campaigners.
The current culture of fear and terrorism is tipping the scale and debate towards greater surveillance in the name of national security. However, once the state has those enhanced surveillance powers – those powers will remain long after terrorism is gone.
Returning to California, the case is currently postponed. It is inevitable that eventually the case will come to court. It is further very highly likely that appeal will follow appeal – and will likely end up in the federal Supreme Court. Given the implications of any verdict, this (hypothetical) case could very well end up as significant as Roe v Wade. The landmark case of Roe v Wade set out the limits of state interference in the lives of private citizens.
Given that the litigation between Apple and the FBI could very well determine that level of state surveillance, intrusion and interference in the lives of citizens – the comparison could be very apt.
Update : it was later announced that the anonymous third party (suggested to be Israeli cyber security firm Cellebrite) had suceeded in unlocking the iPhone in question. The FBI has dropped its law suit against Apple. This is worrying for Apple, as it now evident that there is a flaw in its security measures : doubtless that will be found and fixed in future software and devices. Whilst the law suit may be over – the debate very much has just started. It is only a matter of time before another similar case is brought forward, with similar legal arguments advanced, and similar principles at stake.